# Sushil Kumar Trivedi v. Smt. Richa

- **Citation:** (2024) 10 ILRA 560
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-01
- **Case number:** First Appeal No. 63 of 2021
- **Bench:** Rajan Roy, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sushil-kumar-trivedi-v-smt-richa-51057
- **Pages:** 15

## Headnote

Civil Law- The Family Courts Act, 1984 -
Section 19(1) - The Hindu Marriage Act,
1955-Section 13-Appeal against dismissal of
matrimonial case seeking dissolution of the
marriage under Section 13 of the Hindu
Marriage Act- It is true that the parties are living
apart for a considerable period of time, but this
is not the only test of irretrievable break down
of marriage. Divorce is found on fault theory.
Husband applied for divorce on the ground of
cruelty and desertion. He has not been able to
prove either of these grounds-The basic element
of desertion is animus deserendi has not been
proved in this case-The husband has not proved
the instances of cruelty or desertion against his
wife supported by consistent and coherent
evidence of witnesses and has deposed that he
can not live with the wife at any cost. The
husband has not been able to substantiate his
10 All. Sushil Kumar Trivedi Vs. Smt. Richa
561
allegations of cruelty against his wife. The wife
is willing to live with him but it is he who does
not want to live with her, therefore, in the facts
of this case, plea of irretrievable break down of
marriage cannot be accepted. (Para38 & 39)

Appeal dismissed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,954 of 47,227. This is a partial read: ask again with offset=39954 for what follows._

560 INDIAN LAW REPORTS ALLAHABAD SERIES
If the State of Chhatisgarh did not react to
the communication dated 11.07.2023 and
the State of Uttar Pradesh reacted to the
communication dated 11.07.2023 then it
could not be said that, because the State of
Chhatisgarh
did
not
react
to
the
communication
dated
11.07.2023,
the
communication dated 28.07.2023 was sent
to the State of Uttar Pradesh. Also we refer
to the argument of Sri Shishir Prakash who
had stated that the allotment of tender to
M/s. Prizm Holography and Security
Private Limited was challenged before the
Chhatisgarh
High
Court
and
the
Chhatisgarh High Court had found that
there was nothing illegal in the grant of
tender to the M/s. Prizm Holography and
Security Private Limited and, therefore, to
say that M/s. Prizm Holography and
Security Private Limited was wrongly
granted the tender, was wrong on the part
of the ED. Here, we may state, it was just
possible that the High Court had looked
into the technicalities of the grant of the
tender and thereafter it had held that there
was nothing wrong in the grant of the
tender. Definitely the High Court of
Chhatisgarh had not while looking into the
grant of tender looked into the aspect of the
fact as to whether bribe had been paid to
the accused persons and that whether M/s.
Prizm Holography and Security Private
Limited
was
actually
manufacturing
duplicate holograms which was bringing
loss to the exchequer of the State to the
tune of Rs. 1,200 crores.

30. Since, we have found that the
FIR challenged in Criminal Misc. Writ
Petition No.6236 of 2024, Criminal Misc.
Writ Petition No.6195 of 2024; Criminal
Misc. Writ Petition No.6194 of 2024 and
Criminal Misc. Writ Petition No.7389 of
2024
disclose
the
commission
of
cognizable
offences,
we
consider
it
appropriate not to interfere in the writ
petitions. However, the petitioners can
always avail the remedy before the
competent court of law for bail/anticipatory
bail as is permissible under law.

31. For the reasons stated above,
all the writ petitions accordingly stand
dismissed.
----------
(2024) 10 ILRA 560
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.10.2024

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

First Appeal No. 63 of 2021

Sushil Kumar Trivedi ...Appellant
Versus
Smt. Richa ...Respondent

Counsel for the Appellant:
Manoj Kumar Gupta

Counsel for the Respondent:
Abhinav Singh, Lalit Kumar, Ram Vijay Yadav

Civil Law- The Family Courts Act, 1984 -
Section 19(1) - The Hindu Marriage Act,
1955-Section 13-Appeal against dismissal of
matrimonial case seeking dissolution of the
marriage under Section 13 of the Hindu
Marriage Act- It is true that the parties are living
apart for a considerable period of time, but this
is not the only test of irretrievable break down
of marriage. Divorce is found on fault theory.
Husband applied for divorce on the ground of
cruelty and desertion. He has not been able to
prove either of these grounds-The basic element
of desertion is animus deserendi has not been
proved in this case-The husband has not proved
the instances of cruelty or desertion against his
wife supported by consistent and coherent
evidence of witnesses and has deposed that he
can not live with the wife at any cost. The
husband has not been able to substantiate his
10 All. Sushil Kumar Trivedi Vs. Smt. Richa
561
allegations of cruelty against his wife. The wife
is willing to live with him but it is he who does
not want to live with her, therefore, in the facts
of this case, plea of irretrievable break down of
marriage cannot be accepted. (Para38 & 39)

Appeal dismissed. (E-15)

List of Cases cited:

1. N.G Dastane Vs S. Dastane, (1975) 2 SCC
326

2. Naveen Kohli Vs Neelu Kohli : (2006) 4 SCC
558

3. Samar Ghosh Vs Jaya Ghosh : (2007) SCC
511

4.
Joydeep
Majumdar
Vs
Bharti
Jaiswal
Majumdar : (2021) 3 SCC 742

(Delivered by Hon'ble Om Prakash Shukla, J.)

A. Prelude

(1) This appeal under Section 19 (1) of
the Family Courts Act, 1984 has been filed
by the husband/appellant, assailing the
judgment and order dated 03.04.2021
passed by the Additional Principal Judge,
Family Court, Court No. 2, Unnao
(hereinafter referred to as 'trial Court'),
whereby Matrimonial Case No. 433 of
2016 : Sushil Kumar Trivedi vs. Smt.
Raicha, seeking to dissolve the marriage
under Section 13 of the Hindu Marriage
Act, 1955 (hereinafter referred to as 'Act,
1955') was dismissed.

B. Factual Matrix

(2)

The
appellant/husband
instituted a suit (Matrimonial Case No. 433
of 2016) against the respondent/wife under
Section 13 of the Act, 1955 to obtain a
decree of divorce mainly on the ground of
cruelty, breakdown of their marriage due to
mental torture suffered by the appellant and
further, that cruelty was of a kind that the
appellant could not be expected to live with
the respondent.

(3) It was pleaded in the plaint that
the appellant, Sushil Kumar Trivedi, got
married to Smt Richa (respondent herein)
in accordance with Hindu rites and rituals.
After
marriage,
respondent
came
to
matrimonial house and lived peacefully for
two months and thereafter behaviour of the
respondent towards the appellant and his
parents was not good and she started
quarreling over every issue. According to
the appellant, although he took full care of
the respondent as per her comfort and
convenience but even then the behaviour of
the respondent was always aggressive and
cruel towards the appellant. It was also
alleged in the plaint that appellant tried
his best to convince the respondent, but
the respondent used to quarrel and go
away to her parents' house. It was also
alleged that on 20.05.2012, at 06:00 p.m.,
the respondent came along with her step
mother Usha, her aunt Sunita and Bitto
and one woman to the house of the
appellant in his absence and they
forcefully snatched key of the box from
the appellant's mother and took away the
gold, silver jewellery worth about one
lakh rupees and clothes and also insulted
the appellant's mother by using abusive
languages and also threatened that if any
action was taken against them, they
would kill the appellant and after the said
incident, the respondent had no relation
with the appellant and even she did not
want to live with the appellant. On
23.05.2012, the appellant complained
about the aforesaid incident to the
Superintendent of Police as well as
Station
House
Officer,
Gangahat
personally and through post.
562 INDIAN LAW REPORTS ALLAHABAD SERIES
(4) It was also pleaded that about a
month after the aforesaid incident, father of
the respondent along with his relative, who
was also an Advocate, came to the house of
the appellant and requested to forgive the
mistake of the respondent/wife and other
relatives, who had barged into the house of
the appellant. According to the appellant,
on account of dignity, he agreed to bring
the respondent back to his home and as
such brought the respondent to her
matrimonial home. It was alleged in the
plaint
that
till
February,
2014,
the
respondent continued to come and go from
the house of the appellant but during this
period the responded refused to have any
conjugal relationship with the appellant.

(5) It was further pleaded in the
plaint that in March, 2014, father of the
respondent came along with several people
to the appellant's house and by insulting the
appellant and his parents, took away the
respondent along with jewellery worth
about Rs.5,00,000/- and the respondent told
the appellant that neither she wants to live
with him nor she wants to have any kind of
marital relationship with the appellant and
she would ruin them and would not let him
and his family members live happily.

(6) It was also pleaded that
appellant filed a suit, bearing Matrimonial
Case No. 721 of 2014, under Section 9 of
the Act, 1955 for restitution of conjugal
rights on 28.04.2014. On 05.07.2016, when
the appellant was going to court in the said
case, the respondent along with her father
and several persons came, armed with
illegal arms, accosted the appellant near
G.I.C. Inter College at 09:45 a.m. and
threatened him and asked him to withdraw
the said case. It has been stated by the
appellant that fearing for his life on account
of this threat, he withdrew the said case on
05.07.2016 and in this backdrop, the
appellant instituted Matrimonial Case No.
433 of 2016 on 12.07.2016 seeking divorce
on the ground of cruelty and desertion.

(7) In her written statement, the
respondent/wife has categorically denied
the grounds pleaded by the appellant, and
has specifically pleaded that the appellant
and his family members were demanding
dowry and also tortured and threatened to
kill her, in case demand of dowry was not
fulfilled. It was also pleaded by the
respondent/wife that ever since she came to
her matrimonial house, she maintained her
marital relationship with the appellant. She
kept pleading with folded hands to the
appellant and his parents but the appellant
and
his
family
members
always
misbehaved with her and sometimes even
locked her in the room and kept her hungry.
It
has
been
also
stated
by
the
respondent/wife that she did not go to
parental home without informing the
appellant. On 20.05.2012, her mother did
not go to the house of appellant nor her
father went to the house of the appellant in
March, 2014. She also pleaded that her
husband/appellant filed a suit under Section
9 of the Act, 1955, in which she appeared
and has also filed an application under
Section 24 of the Act, 1955 and thereafter,
appellant himself withdrew the aforesaid
suit. It was also pleaded that on 26.03.2024,
the appellant and his family members
assaulted her and by using abusive
languages, the appellant threatened her for
her life, upon which she informed her
parents and then her father, uncle and other
relatives came to the house of the appellant,
but the appellant and his family members
kept her jewellery and threw her out of the
house and threatened to kill her if she took
any action. She also pleaded that she is a
student of L.LB and she is able to think
10 All. Sushil Kumar Trivedi Vs. Smt. Richa
563
about her own well being and she does not
want to end her married life under any
circumstances.

(8) Based upon the pleadings led
by the parties, the issues framed by the trial
Court are as under:-

"1- D;k i{kdkju vkil esa fof/kd
:i ls fookfgr gS \
2- D;k i{kdkjku ds e/; dfFkr
fookg foPNsnu gksuk mfpr gS \
3- D;k oknh izfrokfnuh }kjk fd;s
x;s ifjR;kx ds vk/kkj ij fookg foPNsn dh
vkKfIr ikus dh vf/kdkjh gS\"

(9) The parties led evidence before
the Trial Court. The appellant examined
himself as P.W.1 and his mother, namely,
Smt. Shyma Trivedi as P.W.2. Apart from
it,
the
appellant
(P.W.1)
had
filed
documentary evidence i.e. a copy of the
application sent by the appellant to Station
House Officer, Gangaghat, a copy of the
application sent by the appellant to the
Superintendent of Police, Unnao and a
copy of the registry receipt (marked as list
16Ga). The respondent examined herself as
D.W.1. From the side of the respondent
(D.W.1), no documentary evidence was
filed.

(10) By the impugned judgment
and order dated 03.04.2021, the trial Court,
after appraising both, oral as well as
documentary evidence, decided the issues
framed in the suits as under :-

Issue
No.
Issues
Findings of the
trial Court
1.
D;k
i{kdkju
vkil esa fof/kd
:i ls fookfgr
gS \
Yes
2.
D;k i{kdkjku ds
e/;
dfFkr
Issue nos. 2 and

3.
fookg
foPNsnu
gksuk mfpr gS \
D;k
oknh
izfrokfnuh }kjk
fd;s
x;s
ifjR;kx
ds
vk/kkj ij fookg
foPNsn
dh
vkKfIr ikus dh
vf/kdkjh gS\

3 were decided
together in the
negative and in
favour of the
respondent/wife.

(11) The trial Court thus dismissed
the suit filed by the appellant under Section
13 of the Act vide judgment and decree
dated 03.04.2021. It is this judgment and
decree dated 03.04.2021, which has been
assailed in the above-captioned appeal.

C. Points of Determination

(12) Based upon the pleadings,
evidence on record and the impugned judgment
passed by the trial Court, the following point for
determination arises before us in this appeal:-

"Whether the findings of the
Family Court regarding issues no. 2
and 3 especially regarding the plea of
cruelty and desertion as allegations for
divorce, are perverse and unsustainable
thereby
rendering
the
impugned
judgment unsustainable ?"

D. Discussion & Analysis

(13) We have heard Shri Manoj
Kumar Gupta, learned Counsel representing the
appellant and Ms. Lalit Kumari, learned
Counsel representing the respondent and
perused the pleadings of the parties, the
evidence led by them and the impugned
judgment.

(14) The main plank of learned
Counsel for the appellant submission was :-
564 INDIAN LAW REPORTS ALLAHABAD SERIES
i. that matrimonial life
lasted only for few months and the
couple have been living separately
since 28.04.2014 and had deserted
him. After all these years, there is
no chance whatsoever of their
coming together;
ii. that the respondent/wife
had caused cruelty by instituting a
series of complaints against the
appellant viz. (a) a complaint
against the appellant, his father,
mother
and
her
sister
on
29.07.2016, which is pending; (b)
on 29.07.2016, Case No. 418 of
2016 under Section 125 Cr.P.C.
before the Court of Chief Judicial
Magistrate,
Unnao
which
was
decided on 03.04.2022, whereby
the appellant was directed to pay
Rs.2500/-
per
month
as
maintenance since the date of
filing; (c) on 29.07.2016, a case
under Section 20/21 of Domestic
Violence Act against the appellant,
his parents and his sister, which is
pending.
iii.
that
by
filing
the
aforesaid cases, mental peace and
reputation of the appellant and his
family
members
has
been
irreparably damaged;
iv. that respondent's cruel
state of mind, had exhibited a
behaviour of such a nature that it
amounted to treating the appellant
with cruelty, rendering the marriage
open to grant of a decree of divorce
in terms of the grounds specified
under Section 13 of the Act;

v. that the findings of the
trial Court that the behaviour of the
respondent constituting grounds of
cruelty, had not been proved, were
perverse and contrary to the weight
of the evidence on record.

(15) Placing reliance upon the
judgment of the Apex Court in Naveen
Kohli Vs. Neelu Kohli : (2006) 4 SCC
558, Samar Ghosh Vs. Jaya Ghosh :
(2007) SCC 511 and Joydeep Majumdar
Vs. Bharti Jaiswal Majumdar : (2021) 3
SCC 742, learned Counsel for the appellant
submitted that findings recorded by the trial
Court on the ground of cruelty while
adjudicating issue nos. 2 and 3 are perverse
and are liable to be set-aside. He further
submitted that parties have been living
apart since March 2014. During this period,
they never met each other which indicates
that their marriage has broken down
irretrievably. Learned counsel, therefore,
urges the Court to put their relationship to
end by granting divorce.

(16) Replying to the contentions
raised by the appellant/husband, learned
Counsel for the respondent/wife has argued
that the respondent wants to resume her
matrimonial life with the appellant and the
same was also pleaded in her written
statement filed by her in the trial Court.
According to the learned Counsel, the
respondent had filed complaints only to get
her legal rights as married wife of the
appellant, therefore, these complaints filed
by the wife/ respondent ought to be
treated/understood as efforts being made by
the wife to preserve her marital relationship
and not as an act of cruelty. Moreso, mere
filing of criminal cases against the
appellant-husband would not constitute
cruelty. According to the learned Counsel,
P.W.1/appellant himself had stated before
the trial Court as well as in the mediation
proceedings between the parties in the trial
Court that the appellant would never bring
home the respondent, whereas in the
10 All. Sushil Kumar Trivedi Vs. Smt. Richa
565
written statement, specific plea was taken
by the respondent that she wants to live
with the appellant, therefore, the findings
recorded by the trial Court are just and
proper and do not require any interference.

(17) Learned Counsel for the
respondent/wife has further submitted that
the appellant/husband compelled his wife/
respondent to leave her matrimonial home
who is now trying to take advantage of his
own wrong. It is submitted that if the
respondent really intended to terminate the
relationship, she would not have stated in
her deposition that she wants to live with
the appellant/husband. According to the
learned counsel, the respondent is still
willing to live with her husband. According
to the learned Counsel, neither cruelty nor
desertion has been proved against the
respondent/wife and moreover, the theory
of irretrievable break down of marriage
does not apply to this case as from the facts
and circumstances of the case it cannot be
established that their marriage has become
dead. Learned counsel, therefore, urges the
court for dismissal of the appeal.

(18)
 To
consider
the
rival
arguments and in order to answer the points
for determination, it will be apposite to
quote relevant provisions of Section 13 of
the Hindu Marriage Act, 1955, which set
out grounds for divorce :-

"13. Divorce.-(1) Any
marriage
solemnized,
whether
before or after the commencement
of this Act, may, on a petition
presented by either the husband or
the wife, be dissolved by a decree
of divorce on the ground that the
other party-
(i)
has,
after
the
solemnization of the marriage, had
voluntary sexual intercourse with
any person other than his or her
spouse; or
(ia)
has,
after
the
solemnization of the marriage,
treated the petitioner with cruelty;
or
(ib)
has
deserted
the
petitioner for a continuous period
of
not
less
than
two
years
immediately
preceding
the
presentation of the petition; or
(ii) has ceased to be a
Hindu by conversion to another
religion; or
(iii) has been incurably of
unsound
mind,
or
has
been
suffering
continuously
or
intermittently from mental disorder
of such a kind and to such an extent
that
the
petitioner
cannot
reasonably be expected to live with
the respondent.
Explanation.-In
this
clause,-
(a) the expression "mental
disorder" means mental illness,
arrested or incomplete development
of mind, psychopathic disorder or
any other disorder or disability of
mind and includes schizophrenia;

(b)
the
expression
"psychopathic disorder" means a
persistent disorder or disability of
mind (whether or not including
sub-normality
of
intelligence)
which
results
in
abnormally
aggressive
or
seriously
irresponsible conduct on the part of
the other party, and whether or not
it requires or is susceptible to
medical treatment; or

(iv) * * * * *
566 INDIAN LAW REPORTS ALLAHABAD SERIES
(v) has been suffering from
venereal disease in a communicable
form; or
(vi) has renounced the
world by entering any religious
order; or
(vii) has not been heard of
as being alive for a period of seven
years or more by those persons who
would naturally have heard of it,
had that party been alive;
(viii) ***
(ix) ***
Explanation.-In this subsection, the expression "desertion"
means
the
desertion
of
the
petitioner by the other party to the
marriage without reasonable cause
and without the consent or against
the wish of such party, and includes
the willful neglect of the petitioner
by the other party to the marriage,
and its grammatical variations and
cognate
expressions
shall
be
construed accordingly.
(1A) Either party to a
marriage,
whether
solemnized
before or after the commencement
of this Act, may also present a
petition for the dissolution of the
marriage by a decree of divorce on
the ground-
(i) that there has been no
resumption
of
cohabitation
as
between the parties to the marriage
for a period of one year or upwards
after the passing of a decree for
judicial separation in a proceeding
to which they were parties; or
(ii) that there has been no
restitution of conjugal rights as
between the parties to the marriage
for a period of one year or upwards
after the passing of a decree for
restitution of conjugal rights in a
proceeding to which they were
parties.
(2) A wife may also present
a petition for the dissolution of her
marriage by a decree of divorce on
the ground,-
(i) in the case of any
marriage solemnized before the
commencement of this Act, that the
husband had married again before
such commencement or that any
other wife of the husband married
before such commencement was
alive
at
the
time
of
the
solemnization of the marriage of
the petitioner:
Provided that in either case
the other wife is alive at the time of
the presentation of the petition; or
(ii) that the husband has,
since the solemnization of the
marriage, been guilty of rape,
sodomy or bestiality; or
(iii) that in a suit under
section 18 of the Hindu Adoptions
and Maintenance Act, 1956 (78 of
1956), or in a proceeding under
section 125 of the Code of Criminal
Procedure, 1973 (2 of 1974) (or
under the corresponding section
488 of the Code of Criminal
Procedure, 1898 (5 of 1898), a
decree or order, as the case may be,
has
been
passed
against
the
husband awarding maintenance to
the wife notwithstanding that she
was living apart and that since the
passing of such decree or order,
cohabitation between the parties
has not been resumed for one year
or upwards;
(iv)
that
her
marriage
(whether consummated or not) was
solemnized before she attained the
age of fifteen years and she has
10 All. Sushil Kumar Trivedi Vs. Smt. Richa
567
repudiated
the
marriage
after
attaining
that
age
but
before
attaining the age of eighteen years.
Explanation.-This clause
applies whether the marriage was
solemnized before or after the
commencement of the Marriage
Laws (Amendment) Act, 1976 (68
of 1976)."

(19) The plaint for dissolution of
marriage in the present case is restricted to
two grounds referable to Section 13(1)(i-a)
and under Section 13(1) (i-b) of the Act i.e.
cruelty and desertion.

(20)

The
specific
pleadings
alleging cruelty on the part of the wife are
in paragraphs 3 to 9 of the plaint, but they
have been specifically denied by the
respondent
in
the
written
statement.
Pleadings relevant to the ground of
desertion are contended in paras 5, 6, 7 of
the plaint.

(21) At this juncture, it would be
apt to mention that Clause (i-a) of sub
section (1) of section 13 of the Act, 1955
declares that a decree of divorce may be
granted by a court on the ground that after
solemnization of marriage, the opposite
party has treated the petitioner with cruelty
subject to the State amendments to Section
13 (1) (i-a) in this regard. Section 13(1)(ib)
of the Act deals with desertion.

(22) To prove his case made in the
plaint, the appellant has examined himself
as P.W.1. He was also cross-examined. It
has come in his deposition that the
defendant/respondent is his wife and she
wants to live with him, but he (appellant)
himself did not want to keep her
(respondent) and his wife is residing at the
address mentioned in the plaint. P.W.1 has
further stated that he did not want to take
back his wife (respondent) at any cost.
P.W.1 has stated on one hand that he went
to the house of his wife (respondent) alone
but he did not remember the date on which
he went to the house of respondent and on
the other hand, he has stated that he did not
go to see off his wife (respondent). He has
further stated that he did not reveal
anything about him and his wife to any of
his relatives. He denied that he has thrown
his wife out of the house by beating her. He
has reiterated the fact that in the case of
Section 9 of the Act, 1955, his wife had
threatened and forced him to withdraw the
case, but he has admitted that he did not
report it to police but had told it orally in
the Court.

(23) In support of his case,
appellant/P.W.1 has also examined his
mother as P.W.2, who, in his examinationin-chief, also reiterated the version of the
plaint. She was also extensively crossexamined and in her cross-examination, she
has also deposed that she did not want to
take back respondent at all nor did she want
to keep her. P.W.2 has also stated that
respondent did not want to get divorced.

(24) One fact is clear from the
aforesaid testimony of appellant/P.W.1 and
his mother/P.W.2 that the plaintiff/appellant
(P.W.1) and his mother (P.W.2) themselves
do not want to keep the respondent as both
of them in their testimonies have clearly
stated that they would not keep the
defendant/respondent at any cost. Moreso,
the record also reveals that matrimonial
dispute
between
the
appellant
and
respondent was not only referred to the
mediation
but
even
the
trial
Court
attempted to bring about a settlement but
the
efforts
could
not
succeed.
The
Mediator, after counseling the parties, has
568 INDIAN LAW REPORTS ALLAHABAD SERIES
submitted a report (marked as Paper No.
22-Ka) before the trial Court, wherein it
was
specifically
mentioned
that
the
appellant does not want to keep her wife in
any way and further the appellant was not
ready to listen or accept any opinion nor
did he want to accept anything and as such,
there does not seem to be any possibility of
reconciliation between the parties.

(25) D.W.1/respondent, while
reiterating the version of her written
statement in her testimony, has deposed
before
the
trial
Court
that
her
husband/appellant herein had filed a case
for restitution of conjugal rights but he
himself withdrew the same and out of the
wedlock no issue was borne.

(26) The record reveals that
immediately after two years of marriage,
litigation between the parties started. On
one hand, the appellant had filed a case
under Section 9 of the Act, 1955 for
restitution of conjugal rights, whereas on
the other, the appellant had filed three
cases, (i) under Section 125 of the Act,
1955, which was decided in her favour; and
(ii) under the provisions of Domestic
Violence Act and (iii) under the provisions
of Dowry Prohibition Act against the
appellant, which are pending before the
Court. The appellant had also not brought
on record before the trial Court the decision
of the case filed by him under Section 9 of
the Act, 1955.

(27)

Thus,
taking
into
consideration
the
aforesaid
facts,
particularly the testimonies of P.W.1, P.W.2
and D.W.2 as also the fact that the appellant
did not bring on record before the trial
Court the decision of the case filed by him
under Section 9 of the Act, 1955, we are of
the opinion that the ground pleaded by the
appellant that his wife/respondent has
deserted him, is not proved as P.W.1 and
his
mother
P.W.2
have
categorically
deposed before the trial Court that they did
not want to keep the respondent at any cost.
We also find that the appellant has failed to
prove the allegations pleaded by him in the
plaint as regards reasons for withdrawal of
the case filed by him under Section 9 of the
Act, 1955 Thus, the ground of desertion
pleaded by the appellant has no substance
and we are in full agreement with the
findings recorded by the trial Court on the
ground of desertion.

(28) Now, the other issue pleaded
by the appellant is that the respondent has
treated the appellant with cruelty. In this
regard, the appellant has pleaded in the
plaint that the defendant/ respondent used
to insult him and his parents before the
marriage, however, he tried his best to
convince her; a dispute arose just after two
months of marriage; once due to the efforts
of the relatives, a settlement was reached
between
them
and
he
brought
his
wife/respondent to home; till February,
2014, his wife/ defendant lived reluctantly
in his house and refused to have marital
relationship; in March, 2014, the father-inlaw took away the respondent-wife with
jewellery
worth
Rs.5,00,000/-
and
threatened him that the defendant would
not live a happy married life while living
with him. The defendant/wife had refuted
the aforesaid allegations made in the plaint.

(29) It is well-settled that the
expression 'cruelty' includes both (i)
physical cruelty; and (ii) mental cruelty.
The onus was on the plaintiff/appellant to
prove cruel treatment by the defendant/
respondent. Appellant/P.W.1 has stated that
his wife/ respondent herein remained
faithful for three months of marriage but
10 All. Sushil Kumar Trivedi Vs. Smt. Richa
569
after that nature of his wife became
aggressive. His statement shows that there
was a dispute after two months of marriage.
In para-5 of the affidavit filed by the
appellant, he has stated that on 20.05.2012,
at about 06:00 p.m., his wife along with
step mother Usha, aunt Sunita and Bitto
and another woman came to his house in
his absence and snatched away the key of
box from his mother, took gold, silver
jewellery worth of Rs.1,00,000/- and
clothes from almirah and also used abusive
languages
against
his
mother
and
threatened his mother that if report be
made, then she and her son would be killed.
It was also pleaded that his wife told his
mother that she had no concern with her
son nor she would live with him. It was
stated by the appellant/P.W.1 that the
aforesaid incident was reported by him to
the Superintendent of Police and Station
House Officer, Gangaghat personally and
through post. The mother of the appellant
was also examined as P.W.2, wherein she
has reiterated aforesaid averments in para-5
of her affidavit.

(30) Both witnesses i.e. P.W.1 and
P.W.2 have stated that the incident dated
20.05.2012 was reported to the police
through post. In this regard, copy of receipt
of registered post was filed by the appellant
as list 16-Ga. The evidence of P.W.1 and
P.W.2 do not show that the appellant
himself went personally to report the
incident to the police but it seems that the
appellant had made a report of the incident
to the police through post and only
formally report the police about the
incident. This shows that the appellant was
not serious about the lodging the complaint
of the incident as if the police did not take
any action on his report, the appellant did
nothing after that and kept silent as there is
nothing on record to show that the
Appellant has taken any further remedial
steps regarding the said incident.

(31) The evidence of P.W.1 and
P.W.2 shows that after some time, on the
intervention of the relatives, a settlement
between the appellant and respondent was
arrived and the appellant took back the
respondent to his home and thereafter
respondent lived along with the appellant at
his house till February, 2014, thus,
apparently any cruelty extended by the
respondent/wife to the appellant prior to it
appears to have been condoned as it is the
own admission of the appellant that after
the said incident, the father and other
relatives of the respondent/wife came to his
house
and
sought
forgiveness
and
admittedly, the appellant/ husband was
magnanimous
to
forgive
the
respondent/wife and they both started
living a happy matrimonial home after the
said incident. At this stage, it would be apt
to mention section 23 of the Hindu
Marriage Act, wherein section 23 (b) inter
alia states:

"(b) where the ground of
the petition is the ground specified
in clause (i) of sub-section (1) of
section 13, the petitioner has not in
any manner been accessory to or
connived at or condoned the act or
acts complained of, or where the
ground of the petition is cruelty the
petitioner has not in any manner
condoned the cruelty,"
From a plain reading of
Section 23(b) of the Act, it is clear
that if a party wants a decree of
divorce on the ground of cruelty, he
is not only required to prove the
facts of cruelty, but is also required
to show that he has not in any
manner
condoned
the
alleged
570 INDIAN LAW REPORTS ALLAHABAD SERIES
cruelty of the respondent. Further,
even if the respondent/wife has not
pleaded in her defence about the
said condonation, as is not to be
found in the pleading of the
respondent/wife,
this
Court
is
reminded of an observation of a 3Judges bench of the Hon'ble
Supreme Court in N.G Dastane
Vs. S. Dastane, (1975) 2 SCC 326,
to quote;
"54
..............................Even
though condonation was
not pleaded as a defence by
the respondent it is our
duty,
in
view
of
the
provisions
of
Section
23(1)(b), to find whether
the cruelty was condoned
by
the
appellant.
That
section casts an obligation
on the court to consider the
question of condonation, an
obligation which has to be
discharged
even
in
undefended
cases.
The
relief prayed for can be
decreed only if we are
satisfied
"but
not
otherwise",
that
the
petitioner has not in any
manner
condoned
the
cruelty. It is, of course,
necessary that there should
be evidence on the record
of the case to show that the
appellant had cordoned the
cruelty.

55.
Condonation
means forgiveness of the
matrimonial offence and
the restoration of offending
spouse to the same position
as he or she occupied
before the offence was
committed. To constitute
condonation there must be,
therefore, two things :
forgiveness and restoration.
The
evidence
of
condonation in this case is,
in our opinion, as strong
and satisfactory as the
evidence of cruelty. But
that evidence does not
consist in the mere fact that
the spouses continued to
share a common home
during or for some time
after the spell of cruelty.
Cruelty, generally, does not
consist of a single, isolated
act but consists in most
cases of a series of acts
spread over a period of
time. Law does not require
that at the first appearance
of accrual act, the other
spouse
must
leave
the
matrimonial home lest the
continued co-habitation be
construed as condonation.
Such a construction will
hinder reconciliation and
there
by
frustrate
the
benign
purpose
of
marriage laws".

(32) Thus, as far as the case of the
appellant is concerned, although he had
pleaded instances of cruelty before the
incident
of
20.05.2012,
however,
apparently as observed by this Court the
same had been condoned in February, 2014
as is admitted by the appellant that he
forgave the respondent/wife and both
started living in the matrimonial home,
thus, any incident of cruelty as alleged
10 All. Sushil Kumar Trivedi Vs. Smt. Richa
571
prior
to
February,
2014
cannot
be
considered.

(33) Further, the record reveals
that the appellant has not stated clearly as
to how and in what manner the respondent
behaved cruelly towards him till February,
2014 and his family. A conjoint reading of
the testimonies of P.W.1 and P.W.2 reveals
that the plaintiff/appellant has failed to
prove the factum of cruelty during the
period she returned back to her matrimonial
home after the incident of 20.05.2012 till
February, 2014, which had allegedly caused
humiliation to the appellant and his family
members, referable to section 13(1)(ia) of
the Act, 1955 as applicable in the State of
U.P. This, of course, is apart from the fact
that he admitted to have condoned such
acts in February, 2014. Thus, we are in
agreement with the finding of the trial
Court that the plaintiff/appellant has failed
to prove the ground of cruelty, which
alleged is said to be perpetrated by the
respondent/wife upon him.

(34) As regards the case of Naveen
Kohli (Supra) relied upon by the appellant
to claim irretrievable break down of
marriage, husband Naveen Kohli sought
divorce against his wife Neelu Kohli,
which was dismissed by the Family Court.
Appeal of the wife was allowed by the
High Court and divorce granted by the
Family Court was dismissed. Appellant
husband then came to the Supreme Court.
In the said case, the husband alleged in his
divorce petition that his wife was a bad
tempered woman and she was of rude
behaviour and after marriage she started
quarrelling and misbehaving with her
husband and parents. As a result, the
husband and his parents left their ancestral
house and started living in a rented house.
In the said case, it was also alleged by the
husband that he found his wife indulging in
an indecent manner in a party and she was
also found in a compromising position with
another man. The wife also showed
extreme cruelty against her husband by
lodging series of criminal cases under
various sections of IPC against her
husband. It was proved by the husband that
she lodged at least 10 criminal cases
against him. Moreover, she also opposed
the bail application moved by her husband
and in one case in which final report was
filed for lack of evidence, she even lodged
a protest petition. The Apex Court observed
that
conduct
of
the
wife
clearly
demonstrates her deep and intense feeling
of revenge against her husband and the
Apex Court held as under :-

"83...From the analysis and
evaluation of the entire evidence, it
is clear that the respondent has
resolved to live in agony only to
make life a miserable hell for the
appellant as well. This type of
adamant and callous attitude, in
the context of the facts of this case,
leaves no manner of doubt in our
mind that the respondent is bent
upon treating the appellant with
mental cruelty. It is abundantly
clear that the marriage between the
parties
had
broken
down
irretrievably and there is no chance
of their coming together, or living
together again."

(35) In this factual context, the
Apex Court granted divorce in favour of
the husband Naveen Kohli by observing as
under :-

"86.In view of the fact that
the
parties
have
been
living
separately for more than 10 years
572 INDIAN LAW REPORTS ALLAHABAD SERIES
and a very large number of
aforementioned criminal and civil
proceedings have been initiated by
the
respondent
against
the
appellant and some proceedings
have been initiated by the appellant
against
the
respondent,
the
matrimonial bond between the
parties
is
beyond
repair.
A
marriage between the parties is
only in name. The marriage has
been wrecked beyond the hope of
salvage, public interest and interest
of all concerned lies in the
recognition of the fact and to
declare defunct de jure what is
already defunct de facto. To keep
the sham is obviously conducive to
immorality and potentially more
prejudicial to the public interest
than a dissolution of the marriage
bond."

(36) In the case of Samar Ghosh
(supra),
the
appellant/husband
Samar
Ghosh and his wife Jaya Ghosh were both
IAS officers. The factual context reveals
that they were in marital tie for as long as
22 years. After solemnization of their
marriage on 13.12.1984, they started living
separately from 27.08.1990. The wife was a
divorcee who had a daughter from her first
marriage. The daughter lived with her
because custody of the daughter was given
to her while she obtained a decree of
divorce against her first husband who was
also an IAS officer. According to the
appellant/husband right from the beginning
of their marriage, his wife imposed
rationing in emotions in the area of love,
affection, future planning and normal
human relation. According to the appellant,
she also declared that she would not have
any child from her marriage with the
appellant and it was her firm decision. As a
result of her stubborn attitude serious
problems developed between the couple
right from the beginning of their marriage
which kept growing. The wife was
contemplating divorce and her daughter
also told the appellant that her mother had
decided to divorce him. Ultimately, from
27.08.1990, she started living separately. In
this
factual
backdrop,
the
appellant
husband filed a suit for grant of divorce in
which the wife pleaded that her husband
was guided by his relatives who were
interfering
in
their
family
affairs.
Ultimately, Addl. District Judge, Alipur,
granted divorce on the ground of cruelty. In
the appeal filed by the wife, High Court
reversed the judgment on the ground that
the husband could not prove cruelty.